The petitioners, two adult males, were arrested and convicted when the police saw them engaging in a private, consensual sexual act.
Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate contact.
The Texas statute that makes it a crime for two persons of the same sex to engage in certain intimate sexual conduct valid. Houston police, entered petitioner’s apartment and saw him and another adult man engaging in a private, consensual sexual act. The police arrested them and a court convicted them of deviate sexual intercourse in violation of the Texas statute. The petitioners were adults at the time of the alleged offense.
Is the Texas statute that makes it a crime for two persons of the same sex to engage in certain intimate sexual conduct valid?
No, the two adult petitioners’ right to liberty under the Due Process Clause gives them full right to engage in their conduct – sexual conduct – without intervention of the government. The Constitution promises that there is a realm of personal liberty which the government may not enter. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Thus, the statute is unconstitutional.
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are immoral and unacceptable – the same interest furthered by criminal laws against fornication, bigamy, adultery, and obscenity. Bowers held that this was a legitimate state interest. The Court, however, reaches the opposite conclusion. The Court says that the present case does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. If this is so, what justification could there be for denying the benefits of marriage to homosexual couples exercising the liberty protected by the Constitution?
Rather than relying on the substantive component of the Due Process Clause, the Court should rely on the Equal Protection Clause. That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would fail under rational basis review. Texas could not assert any legitimate state interests and thus the the statute violates under the Equal Protection Clause.
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. The case involves two adults, who with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. The matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.